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How do you ask for a divorce?

Asking for a divorce is not a question that no married person ever begins their marriage thinking that he or she will ever have to ask. Whether yours is a marriage that is on it way towards a divorce or you are merely doing your due diligence right now, there are a lot of reasons why you may be justified in asking a family court to grant a divorce to you and your spouse. As many marriages as there are in the world, there are just as many reasons why a court could grant a divorce to you and your spouse. You can have the “best” reason in the world, no reason at all or something in between. As long as you have your “reason” the divorce can proceed.

The method to actually ask for a divorce and have one granted to you is a little more straightforward, however. You ask for a divorce in Texas by filing what is called an Original Petition for Divorce. The Original Petition for Divorce will tell the court who you are, who your spouse is and who your children are (if you have any). It will also tell the court what you are asking them to do for you and will specify your reason why the divorce should be granted. All in all, it is a very short document- typically no more than about 7-9 pages in length on the longer end. 

From there, you take your Original Petition, file it with the court, wait for it to be assigned to a specific family court and then wait for the documents to be processed. Once this is all accomplished you have officially, and legally, asked for divorce from your spouse. However, that is just the beginning of this process. Just because you ask for something does not mean it is going to be given to you immediately. In fact, you need to make your spouse aware of your requests. The judge will not do this for you. 

What if you want a fast and easy divorce?

Is there such a thing as a fast and easy divorce? Well, I guess you take these terms to be relative in their meaning then I guess there probably is a fast and easy divorce. However, if you take a microwave approach to fast and easy rather than a slow cooker approach then you will probably be disappointed to learn that you will probably not be able to get a drive thru style divorce from your spouse in Texas. 

There is a waiting period that almost every person going through a divorce in Texas must abide by. The sixty day waiting period is in place to ensure that you and your spouse have thought the decision to get divorce through and are sure that it is right thing for you to move towards. I have had more than one client reconcile with a spouse during the divorce so I can’t say that the sixty day waiting period has never worked out the way that our legislators have intended. If there was no waiting period you can rest assured that there would be a lot more divorced people in our state. 

The other thing that you need to keep in mind is that either you, your spouse or both of you need to be a resident of Texas in order to get a divorce here. The residency requirement holds that you must have been a resident of the state of Texas for at least six consecutive months prior to filing for divorce. Additionally you must have been a resident of county in which you have filed for at least 90 days prior to filing for divorce. So, if you and your spouse have just moved to Texas or have just moved to a new city in Texas it is probable that you will have to wait a little to get divorced in order to have these residency requirements met. 

Do you and your spouse get to make up the rules as you go as far as your divorce is concerned?

The answer to this question is yes and no. It’s no because you all will likely have either standing and/or temporary orders that will go into effect at the beginning of your case. These orders will govern the basics of living your lives during the divorce. With that being said, you and your spouse will have an opportunity to negotiate for temporary orders rather than have a court or the county in which you reside come up with them for you all. 

The temporary orders or standing orders for most Texas counties look pretty similar. You will need to be able to follow some basic rules as far as following visitation guidelines with your kids. You will not be able to take your kids out of one school and put them into another school during the divorce. You will not be able to remove your spouse from your employer provided health insurance. You will also not be able to ring up a bunch of debt on your credit card and expect that your spouse will become responsible for paying half of it in the divorce. 

Basically, the temporary orders force you and your spouse to behave and play nice in the sandbox for the duration of your divorce. From my experience, most people have no problems following the rules on their own but the temporary orders ensure that this is the case. If you and your spouse cannot agree between yourselves on how to create temporary orders in your case a judge will have to intercede and hold a hearing in order to establish temporary orders. 

Will you actually go to court?

It depends. Most divorces in Texas will never have a contested hearing before a judge. For the most part you and your spouse will have every opportunity to settle your case between yourselves without ever having to involve a judge. Through a process called mediation you and your spouse will be forced to negotiate at least once before a temporary orders hearing and then once again before a trial. 

Mediation is a process whereby you and your attorney and your spouse and their attorney will go see a third party family law attorney who will act as a party who will attempt to cause you and your spouse to agree to settle any issues in your divorce. Temporary orders mediation will focus more on issues that relate to your immediate lives- who pays the bills? Who gets to see the kids and when? Is spousal maintenance going to be paid? Final orders mediation deals more in relation to post-divorce life questions: who will the kids live with after the divorce? Who gets to stay in the family home? How will retirement benefits be divided?

If you and your spouse cannot agree to a complete settlement in mediation then you will have a hearing or trial before the judge. Both you and your spouse will have an opportunity to present evidence to a court and have the judge make rulings on the issues of your case. It is tough to leave these decisions to a judge in that he or she does not know either party that well and will be making important decisions for your family. It is typically better for you to be able to come up with your own agreements in mediation rather than to rely on a judge’s decisions. 

Do you need a concrete reason to file for divorce in Texas?

You do not need to have a specific reason for filing for divorce in Texas. Texas is what is known as a no fault state. You can have a specific reason for filing divorce- infidelity, abandonment, cruelty, etc.- or you can just say that you and your spouse were unable to get along with one another and that your divorce is justified on these grounds. Basically, if you want a divorce in Texas you can get a divorce. This applies whether or not your spouse is on board with the divorce. 

Most importantly, you do not have to present evidence to a judge in order to show that your spouse did anything wrong in particular when it comes to getting the divorce. If you are alleging a particular fault ground for divorce then it would behoove you to present evidence in order to substantiate that fault ground. However, if you simply want to get a divorce and do not have a specific fault ground in mind you do not have to present any evidence in particular to a judge in order to substantiate your divorce request. 

The vast majority of divorces in Texas are called no-fault divorces. Basically, if you allege a no fault divorce in Texas you are telling the state that you and your spouse were not able to continue on in the marriage due to conflict of personalities. If you and your spouse cannot get along then you can still get a divorce. Fault grounds may play a role in how the community estate is divided between the two of you so that is something to keep in mind. 

What about community property? How is that divided in a Texas divorce?

As we just saw, divorce division of property can hinge often times on why you are getting a divorce in the first place. If you caused the breakup of your marriage by wasting community assets, abusing your spouse or harming your relationship through an affair then you will likely have some consequences to suffer. Often times a judge will divide community property in a manner that favors the spouse who was the “victim.” 

However, for most spouses community property will be divided in a way that reflects your family dynamics. Judges can consider the size of your community estate, the size of your separate estates, educational background of each spouse, ages and work histories when determining how to divide up the community estate. All in all, judges are given broad discretion when dividing up a community estate. 

It is not the case that community property is always divide up 50/50 in Texas divorces. Although Texas does adhere to community property principles the judge can look to many circumstances in a case when determining how to divide it up. While many divorces do see community estates divided up nearly down the middle that does not have to be the case. It could be that one of the fault grounds or another important circumstance is considered and a disproportionate division- favoring either you or your spouse occurs. 

Final thoughts on asking for a divorce in Texas

How you ask for the divorce is not the question that you should be asking yourself. Rather, you need to consider why you want a divorce, your plan for getting the divorce and what you need to do in order to accomplish the goals you have set forth for yourself. I find that while many people have thought about at least one of these areas in their planning one or two others are still left without much consideration. That is where the assistance of an experienced family law attorney can be vital. By having someone who has been in the middle of highly contentious divorces, you will have the benefit of the perspective of someone who can guide you and advise you on important subjects that are sure to come up in your divorce. 

If you have any questions about the material that we wrote about in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys are available six days a week to answer your questions about a wide range of family law problems- including divorce. We appreciate the opportunity to serve our community in the family courts of southeast Texas. Come talk to us about how we can best serve you and your family when you need guidance and advice the most. 

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